Pressing a point

Prentice Women’s Hospital is a landmark for me. Owned by Northwestern University, it stands directly across from the Northwestern Law complex, meaning that I passed it virtually every day as a law student and more recently as a VAP here at the school. So I’m keenly interested in the University’s plan to tear down the concrete, clover leaf-shaped structure and replace it with a state-of-the-art research facility. The debate over its fate also illustrated a trend towards advocacy in the mainstream media that raises some interesting legal questions.

The building is one of the foremost examples of late-Modernist architecture in the city, and activists pressed the Chicago Commission on Landmarks to give the building landmark status, thus preserving it from demolition. When, in the midst of the preservation effort last year, local alderman Brendan Reilly said he was “open to suggestions” to save the building, New York Times architecture critic Michael Kimmelman stepped in. Kimmelman did not merely detail the architectural relevance of the building or express his support for preservation. Instead, he asked Chicago architecture’s It Girl, Jeanne Gang, whether it would be possible to build a research tower on top of the existing structure. She responded with drawings of a 31-story skyscraper perched on top of the clover leaf. Kimmelman wrote about Gang’s idea, running pictures of her concept in the paper. Again, though, he didn’t stop there. He contacted a field officer for the Chicago office of the National Trust for Historic Preservation, and asked whether her organization would support the idea. He contacted Northwestern to ask whether the university might sign on. And he called the president of an international structural engineering firm to get feedback on the structural and financial feasibility of the plan. Somewhere along the way, Kimmelman stopped looking like a reporter, or even a critic, and started looking more like one of the activists trying to save the building.

Putting aside the admirable intentions that obviously drove Kimmelman, his efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media. Of course, partisanship and muckraking in journalism are not new. But as journalism migrates onto our phones and screens alongside Instagram and Facebook, and as “dying” newspapers and network news broadcasts venture beyond traditional reporting techniques to chase eyeballs and engagement, it grows increasingly difficult to categorize what exactly we are consuming when we consume the news. Why do these questions, obvious fodder for media ethicists, matter to lawyers? For two reasons, one specific and one general.

Specifically, a number of statutes identify for unique treatment “journalists” or “the news media.” The statutes include state reporter shield laws protecting the media in many circumstances from identifying sources, so-called retraction statutes that require or encourage plaintiffs to ask defamers for retractions prior to suit, and occasionally right of publicity statutes that protect the use of individuals’ names or likenesses for news purposes. If legislatures wish to fortify the media with statutory protections, the boundaries of the media category are crucial. The question has been percolating for a few years now because bloggers have increasingly been claiming protection under shield and retraction statutes. Many courts, interpreting ambiguous state laws that apply to, for example, those “engaged in the business of collecting, writing or editing news for publication,” have extended the laws’ coverage to non-mainstream writers so long as their design is to discover and disseminate information. But could this functional definition of the media exert pressure in the opposite direction, excluding members of the mainstream press who innovate with personal Twitter commentary on current events or lobbying like Kimmelman’s? Put another way, as the web has empowered individual citizens to act more like traditional journalists entitled to statutory press protections, have traditional journalists begun to act more like individual citizens, thereby forfeiting those same statutory press protections?

Which leads to the more general relevance of questions about press practices. The First Amendment speaks of both freedom of speech and freedom of the press. Whether the two phrases have unique and independent meanings, or are essentially unitary, has been the subject of ongoing debate. Potter Stewart cracked the question open in the 1970s, saying that “[i]f the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy[, but b]y including both [Speech and Press] guarantees in the First Amendment, the Founders quite clearly recognized the distinction between the two.” In contrast, media law scholar David Anderson commented more recently that “[m]ost of the freedoms the press receives from the First Amendment are no different from the freedoms everyone enjoys under the Speech Clause.” The independent significance of the Press Clause continues to draw interest: the Georgia Law Review is holding a symposium this year that will focus on the meaning of the clause in the modern era, using the discussions in New York Times v. Sullivan and Citizens United as bookends to frame the question. Theorists may be able to construct a persuasive case that the Press Clause protects something separate and distinct from individual speech. If so, realists will have to figure out whether it protects writers like Michael Kimmelman.

2 Responses

“[Kimmelman’s] efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media.”

But earlier, Kimmelman was identified as a “critic,” not as a “reporter.” Don’t we hire “critics” to tell us their opinions?

What I red here in your report was that Kimmelman didn’t take the easy (lazy) route of merely stating his opinion. A critic is supposed to be an expert in a subject area, but that doesn’t usually mean he is omniscient in that area. So Kimmelman went to the trouble to investigate whether the proposed alternative was possible, whether such an approach would/could be supported by the public and by the University, and whether it would be physically and financially feasible.

We should be so lucky that critics would do such a thorough investigation before they attempt to foist their personal ideas on us as “expertise.” If I could disagree with your sentence “somewhere along the way” any more strongly, it would have to be in all capital letters.

I’m afraid I’m largely with Orin on this one. Kimmelman is a critic, not a reporter. You are right that the mid-20th-century standard of avoiding advocacy by professional reporters is increasingly being departed from, especially but not exclusively online. But Kimmelman does not fall in that category–indeed, he is and always has been a columnist as much as a straight, wait-for-the-event-and-review-it critic–so he can’t really be taken as evidence for or against the general trend. Moreover, as influential and seemingly set-in-stone as that mid-century model is, it only really came into being in the late 19th century and only really flowered in the mid-20th century. The questions you raise about the Press Clause are fine and perfectly perceptive, and I look forward to being at the Georgia conference to hear and share some views about them. But if the Press Clause protects the “press” at all, and I think it should and/or does, and if it does so at least in part as a matter of history, then surely we should recognize that open advocacy in the press has a much longer tradition than studied neutrality (again, by reporters, not those who are paid by the press to have and advance their own views).